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Monday, August 28, 2017

Indian Supreme Court Finds Privacy to be a Fundamental Right

On August 24,
a special nine-judge bench of India’s Supreme Court ruled unanimously that privacy
is a fundamental right under Article 21 of the country’s Constitution and a
part of the freedoms guaranteed by Part III of that Constitution. The landmark
judgment came in a case entitled Justice
K S Puttaswamy (Retd) vs Union of India.
The case began in 2012 when Justice Puttaswamy filed
a petition in the Supreme Court challenging the constitutionality of the
government’s Aadhaar biometric scheme on the grounds that it violated the right
to privacy. Successive Indian governments
argued that there was no such constitutional right. As in the US, the word privacy is not found
in the Indian Constitution and Indian courts had given conflicting opinions on
whether one existed. The massive 547-page
judgment, a veritable treatise on privacy, resolved this controversy in a definitive
manner and is expected to lead to further challenges to the Aadhaar scheme and
to Indian laws banning homosexuality, alcohol consumption and other matters. Intensified challenges can also be
anticipated to tech giants such as Uber, Google and Facebook, as well as to the
country’s own start-up industry.

Anticipating
the ruling, the Modi Government on August 2 formed a ten-member panel under
Justice B N Srikrishna (Retd) with representatives of government, academia and
industry tasked with drafting a
comprehensive data protection bill. A
few days after the ruling, Minister for Law and IT Ravi Shankar Prasad said that
he hoped the new law would be in place by December. While this target date may
appear over-ambitious, consultations and work on a comprehensive privacy bill
have been ongoing in India since at least 2011 (see the April 2014 report in this blog’s News Archive). The government, in its response to the
ruling, emphasized the court’s finding that privacy is not an absolute right
but one in which an appropriate balance must be struck. Asked whether the stringent privacy
requirements that would be forthcoming could scuttle innovation within India,
Prasad said: "I am happy that the court has marked innovation as an
important criteria where reasonable restrictions can be applied."